Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Employment discrimination

Civil Procedure

Articles 1 - 30 of 38

Full-Text Articles in Law

Civil Procedure—Dukes Commonality Standard—Factors That Courts Should Weigh In Employment Discrimination Class Actions—Wal-Mart Stores, Inc. V. Dukes, 564 U.S. 338 (2011), Anuj Teotia Mar 2023

Civil Procedure—Dukes Commonality Standard—Factors That Courts Should Weigh In Employment Discrimination Class Actions—Wal-Mart Stores, Inc. V. Dukes, 564 U.S. 338 (2011), Anuj Teotia

University of Arkansas at Little Rock Law Review

No abstract provided.


Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino Sep 2019

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …


Cat Scratch Fever: The Spread Of The Cat’S Paw Doctrine In The Second Circuit, Crystal Jackson-Kaloz May 2018

Cat Scratch Fever: The Spread Of The Cat’S Paw Doctrine In The Second Circuit, Crystal Jackson-Kaloz

Catholic University Law Review

The phrase “cat’s paw” comes from an Aesop’s fable and has been used to define a person used by another as a tool or a scapegoat. The phrase was coined and injected into employment discrimination law by Judge Richard Posner in Shager v. Upjohn Co. and later adopted by the U.S. Supreme Court in Staub v. Proctor Hospital. In Staub, the Supreme Court held that an employer could be liable for an adverse employment decision that was based on the recommendation of a supervisor who possessed a discriminatory or retaliatory bias against the adversely affected employee. However, the …


The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux Jan 2017

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.


Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Feb 2015

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Stewart J Schwab

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.


Discrimination Cases Of The 2002 Term, Eileen Kaufman Dec 2014

Discrimination Cases Of The 2002 Term, Eileen Kaufman

Touro Law Review

No abstract provided.


Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Dec 2014

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Kevin M. Clermont

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.


A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux Jan 2014

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.


Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin Jun 2013

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …


Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer Apr 2013

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …


Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg Jan 2013

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …


The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux Jan 2013

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

NYLS Law Review

No abstract provided.


(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss Jan 2013

(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss

Publications

No abstract provided.


The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux Jan 2013

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

No abstract provided.


The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux Jan 2013

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

Publications

No abstract provided.


Managerial Judging And Substantive Law, Tobias Barrington Wolff Jan 2013

Managerial Judging And Substantive Law, Tobias Barrington Wolff

All Faculty Scholarship

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial …


Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin Jan 2013

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.


Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett Jan 2013

Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett

NYLS Law Review

No abstract provided.


Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue Jan 2013

Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue

NYLS Law Review

No abstract provided.


Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg Nov 2012

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …


Implicit Bias In Employment Litigation, Melissa R. Hart Jan 2012

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …


Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux Jan 2012

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.


From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart Jan 2011

From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart

Melissa R Hart

No abstract provided.


Civil Rights And Systemic Wrongs, Melissa Hart Jan 2011

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …


How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux Jan 2011

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.


Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux Jan 2011

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …


Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux Jan 2011

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.


Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew Jan 2011

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

Articles

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.


Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch Oct 2010

Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch

Scholarly Works

This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.


The 'Offer Of Judgment' Rule In Employment Discrimination Actions: A Fundamental Incompatibility, Maureen Malvern Aug 2010

The 'Offer Of Judgment' Rule In Employment Discrimination Actions: A Fundamental Incompatibility, Maureen Malvern

Golden Gate University Law Review

No abstract provided.